A SAMPLE DIVORCE: PART TWO

The Amended Petition and Motion for Temporary Orders

» If you haven’t already, check out Part One of this series

In Part One, our fictional case’s Husband, John Doe, responded aggressively when his wife, Jane Doe, filed for divorce. He hired a renowned divorce attorney who immediately attacked Jane’s parental fitness and credibility. This common strategy to escalate conflict is intended to make the other party uncomfortable by making litigation more personal and expensive. Some attorneys also hope similar tactics will negatively influence the family court’s impression of the other party or cause what we refer to as “issue confusion” where the court is tasked with sorting through so many allegations that it becomes fatigued and more susceptible to oversight.

While Jane originally was optimistic the parties could resolve their differences without nasty litigation, John’s response made it perfectly clear that she was wrong. Jane could not believe John was trying to take the children away from her. That was so petty, even for him, she thought.

Jane knew she would need help in this case, so she contacted a divorce attorney with whom she previously consulted. Unfortunately, that attorney required a $10,000 retainer, just to get started and Jane simply could not afford that. After several consultations with other law firms, she found an attorney with a reasonable retainer.

During their consultation, the attorney asked questions and raised issues Jane had not previously considered. Based on their conversation, Jane’s attorney wanted to amend Jane’s petition to (1) inform the court of the domestic violence that occurred between the parties; (2) contest the validity of the disclaimer deed; and (3) add a claim for community funds John used to further extramarital affairs.

The Amended Petition

Amendment may be necessary for a variety of reasons. Sometimes a party may discover additional claims or causes of action to be added to the complaint or petition. A party also may wish to name additional parties to the lawsuit, though this is far less common in family court cases.

Pursuant to Rule 28, a party may amend his or her petition once as a matter of right so long as the opposing party has not yet filed a response. Otherwise, the party needs to obtain the opposing party’s consent or permission from the court to amend.

In our case, John’s attorney predictably opposed amendment so Jane had to file her motion for leave to amend the petition. Jane’s Motion properly attached a redlined copy and a clean copy of the amended petition to illustrate the changes made. When a party files a motion, the opposing party typically has ten court days (excluding weekends and holidays) to file a response. John’s attorney timely filed a detailed response to motion for leave to amend (intentionally condensed for brevity) and asked the family court to deny Jane’s Motion.

Unless otherwise specified, the party who filed the motion typically has five court days to reply to a response. It is important to terminologically differentiate between a response to a motion and a response to a petition. Ordinarily there is no right to reply to a response to a petition.

Jane’s attorney filed a brief reply (also condensed for illustrative purposes) and the court promptly granted the motion by minute entry.

This is a great example of how attorney “aggressiveness” can adversely affect the client. Procedural motions like this are routinely granted. There is a strong preference among Arizona courts, particularly family courts, to resolve cases on their merits rather than technicalities. Opposition then becomes a needless expense.

Although every case is unique and there is no universal guide for when to contest a motion, most experienced family law attorneys would agree that John should not have opposed the amendment. But for John, whose goal was to punish Jane, it was worth it to incur a few hours of unnecessary attorney’s fees to oppose to the motion because it directly increased Jane’s attorney’s fees, too, fees John knew Jane already struggled to afford. John believed the easiest way to “win” in this litigation was to force Jane to deplete her limited funds.

Jane’s Motion for Temporary Orders

John’s strategy to make litigation too expensive for Jane was obvious. Jane, a housewife during the marriage, had no income or other source of funds. So her attorney filed a motion for temporary orders to request interim spousal maintenance, child support, and attorney’s fees. The court set a return hearing and issued an order to appear.

A motion for temporary orders asks the family court to order certain relief while litigation is pending. Because family court cases can take several months or even years sometimes, temporary orders may be necessary to establish an interim parenting plan or financial support.

Jane requested temporary spousal maintenance in the amount of $3,500 per month and calculated child support up to $1,800 per month, depending on parenting time awarded to John. Jane also asked for $10,000 in interim attorney’s fees.

Most requests for attorney’s fees in family court are made under A.R.S. § 25-324, but when the case involves child custody, A.R.S. § 25-403.08 offers another way to request interim attorney’s fees and costs.

John’s Response and Counter-Motion for Temporary Orders

Pursuant to Rule 47, a party is not required to file a response to a Motion for Temporary Orders. However, John wanted to request temporary orders outside of the Jane’s requests, so he filed a response to motion for temporary orders and counter-motion for temporary orders to ask the court to establish a temporary parenting schedule, to impose conditions on Jane’s parenting time, and to grant John exclusive use of the marital residence.

The court received both motions for temporary orders and set the matter for a return hearing. It issued orders to appear for which both attorneys accepted service on their respective client’s behalf.

» Part Three: Temporary Orders Hearings

2019-02-14T14:37:11+00:00